Skip to document content Go to main menu Go to search

Muka & another v Malala & 12 others; Commission for University Education & 2 others (Interested Party) (Constitutional Petition E002 & E001 of 2022 (Consolidated)) [2022] KEHC 10131 (KLR) (23 June 2022) (Ruling)

Reported
Muka & another v Malala & 12 others; Commission for University Education & 2 others (Interested Party) (Constitutional Petition E002 & E001 of 2022 (Consolidated)) [2022] KEHC 10131 (KLR) (23 June 2022) (Ruling)
Citation
Muka & another v Malala & 12 others; Commission for University Education & 2 others (Interested Party) [2022] KEHC 10131 (KLR)
Media Neutral Citation
[2022] KEHC 10131 (KLR)
Court
High Court
Court station
High Court at Kakamega
Outcome
Dismissed
Case number
Constitutional Petition E002 of 2022
Attorneys
Mr. Malalah, Ms. Odek,
Judges
PJO Otieno
Judgment date
23 June 2022
Language
English
Type
Judgment
Original source file
Download DOCX (62.8 KB)
Collections
Date published
02 August 2022
Case action
Ruling
Court division
Constitutional and Human Rights
Filing county
Kakamega
Skip to document content
1.Before this court is the 3rd and 4th respondents preliminary objection dated June 7, 2022 premised on the following grounds: -a)That the petition and the application be dismissed for want of jurisdiction as the petition and the application and by extension this court are in effect usurping the 3rd and 4th respondents’ jurisdiction and mandate under regulation 30 and 43 of the Elections (General) Regulations 2021 to nominate, validate or invalidate the 1st respondent’s nomination.b)That the petition and the application be dismissed as they seek this court to interfere and direct the 3rd and 4th respondents on how to carry out their mandate under Constitution and the Elections Act.c)That the petition and the application be dismissed for want of jurisdiction by dint of article 88(4)(d) and (e) of Constitution 2010 as read with section 74 of the Elections Act, 2011 that mandates and grants the IEBC with authority and jurisdiction to resolve disputes relating to or arising from nominations.”
2.The preliminary objection has been argued by way of written submissions.
1st Respondent’s Submissions
3.It is the submission of the 1st respondent that article 88(4) of Constitution mandates the 6th and 7th respondent to determine pre-election disputes. He argues that the jurisdiction of this court in pre-election disputes is supervisory as espoused under article 165(6) of Constitution and referred the court to the case of Diana Kethi Kilonzo & another v Independent Electoral and Boundaries Commission & 10 others [2013] eKLR. He submits that where the law has established a dispute resolution mechanism, no other body can usurp such powers. They cited the case of Republic v Independent Electoral and Boundaries Commission ex parte Charles Ondari Chebet, Francis Gitau Parsimei & 2 others v National Alliance Part & 4 others and Sammy Ndung’u Waity v Independent Electoral and Boundaries Commission & 3 others.
6th and 7th Respondents’ Submissions
4.It is also the submission of the 6th and 7th respondents that the jurisdiction of this court is ousted by dint of article 88(4)(d) and (e) of the Constitution as read with section 74 of the Elections Act, 2011. They relied on the case of Eliud Wafula Maelo v Ministry of Agriculture & 3 other [2016] eKLR to emphasize that the jurisdiction of the high court can be ousted by statute. They contend that this court cannot clothe itself with original jurisdiction in matters it does not have original jurisdiction. They referred the court to the case of Samson Chembe Vuko v Neloson Kilumo & 2 other [2016] eKLR in support of this position.
Petitioners’ Submissions
5.It is the submission of the two petitioners that this petitions touches on the genuineness of academic documents presented by the 1st respondent to the 6th respondent and that the 6th respondent does not have the mandate to determine the validity and genuineness of a document presented by an aspirant or candidate. To support this position, he relied on the case of Ethics and Anti-Corruption Commisson v Granton Graham Samboja & Another; Kenyatta University & another (Interested parties) [2021] eKLR.
6.The petitioners further argue that the 6th respondent has no investigative machinery to undertake enquiries into the validity and legitimacy of academic certificates and credentials supplied by candidates and in support of this position they placed reliance on the case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamas & 3 other; Ahmed Ali Muktar (interested party) [2019] eKLR. He further contends that where Constitution has provided for two or three methods of resolving disputes, none can exclude the other. He referred the court to the case of Kennedy Moki v Rachel Kaki Nyamai & 2 others [2018] eKLR.
7.In asserting that this court has the jurisdiction to hear this petition, the petitioner placed reliance on the case of Karanja Kabage v Joseph Kiuna Kariambegu Ng’ang’a & 2 others [2013] eKLR where the court held that in determining the question of validity of an election, the court is bound to examine the entire election process leading up to the declaration of results.
Issues
8.This court has considered the application and submissions offered by the parties and identifies the only issue for determination to be whether this court has the jurisdiction to determine a pre-election dispute regarding the legitimacy of academic certificates offered by a gubernatorial candidate/aspirant.
Analysis
9.The Constitution of Kenya, 2010 has assigned different organs the jurisdiction to determine disputes of different categories and such organs and bodies must be allowed to grow and execute mandates. Article 88(4) for example vests the power to handle pre-election disputes including nomination disputes and provides: -“The commission is responsible for ……(e)the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;”
10.To give effect to the constitutional provision, section 74(1) of the Elections Act No 24 of 2011 reiterates the mandate almost verbatim and provides: -“Pursuant to article 88(4)(e) of Constitution, the commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.”
11.The reading of the subject petitions reveals that both question the authenticity of academic certificates presented by the 1st respondent to the 6th respondent in his contest for the gubernatorial seat, Kakamega County.
12.The academic qualifications for a person vying for the seat of a governor is legislated in article 180 (2) as read with article 193(1)(b) of the Constitution and broken down to the details by section 22(1)(b)(ii) of the Elections Act, No 24 of 2011. The base line is that to be eligible to contest the office of the governor of a county, one must be a holder of a degree from a university recognized in Kenya. Over and above the statutory set academic requirement the overriding moral and ethical standing for any public office remain firmly indispensable1.1Article 193(1)(b)
13.Here however, the question that the court is called upon to determine is whether this court can hear and determine disputes concerning the legality, authenticity and genuineness of academic certificates presented by an election candidate bearing in mind that qualification of candidates running for the seat of a governor are underpinned in the Constitution.
14.In answering this question and in turn determining the preliminary objection, the court appreciates the industry by counsel in the research disclosed in the submissions filed.
15.The court has had the benefit or perusal of such submissions and the decisions cited and it narrows down that both sides agree that the law applicable is actually to be found in the binding decisions of the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others; Ahmed Ali Muktar (Interested Party) [2019] eKLR and Sammy Ndung’u Waity v Independent Electoral and Boundaries Commission & 3 others (2019) eKLR
16.In Mohamed Abdi Mahamud’s case (supra), where the election of the appellant, as the governor of Wajir county, was nullified by the high court, as an election court, on the ground that the appellant did not have the requisite academic qualifications to vie in the election. That decision was upheld by the Court of Appeal but upset by the Supreme Court on several grounds among them on the basis that the determination of whether or not a candidate is qualified to contest is a matter to be determined prior to the conduct of the elections as a pre election dispute with two judges of the dissenting on the basis that where such is not taken up at that stage then it remains a threshold issues going to the root of the election and may be taken up by the election court.
17.In his dissent demystifying the meaning and interpretation of article 88(4)(e) of the Constitution, Maraga CJ, JSC, as he then was held and rendered himself as follows;“[140]…in this regard, I would like to debunk the appellant’s notion that article 88(4)(e) has vested IEBC with exclusive jurisdiction to determine pre-election “electoral disputes relating to or arising from nominations”.[141]In my view, a contextual interpretation of article 88(4)(e) divides into two categories the pre-election nomination disputes therein referred to. The first category comprises of the disputes which are founded under the general rubric of the constitutional qualification or eligibility criteria to contest in an election as set out in article 99 for Member of Parliament; article 137 for President; and article 193 for Member of the County Assembly.[142]The second category includes intra-party nomination disputes contemplated by section 31 of the Elections Act such as whether or not one was properly selected under the “rules of the political party concerned relating to members of that party who wish to contest” in a given election which the PPDT may or may not have resolved under section 41 of the Political Parties Act; and disputes under section 34 of the Elections Act as to whether one’s name should or should not be on a political party list. This category of disputes are not founded on any constitutional criteria and do not therefore go to the root of an election. In my view, IEBC has exclusive jurisdiction to determine this category of disputes. It should therefore determine them with finality subject to any appeals in accordance with the procedure set out in the Elections Act and the election courts should not entertain them.[143]In my humble view, however, an exception has to be made with regard to the first category of disputes which are founded on the constitutional qualification or eligibility criteria for several reasons…[146]Any disputes that questions one’s qualification or eligibility to vie in an election is invariably a challenge of the integrity or validity of that election. Needless to say that such dispute goes to the root of an election. As such, even though article 88(4)(e) vests IEBC with jurisdiction to handle this category of disputes, a purposive reading of other provisions of the Constitution would show that the election courts are also vested with jurisdiction to entertain them.” (Emphasis mine)
18.Earlier, the Court of Appeal in Kennedy Moki v Rachel Kaki Nyamai & 2 others [2018] eKLR in observing that matters touching on the qualifications of a candidate go to the root of the elections had taken the position that the jurisdiction of IEBC is not exclusive and said;“57.Convinced that election is a process which includes nomination of candidates, we take the view that subject to finality and constitutional time lines of the jurisdiction of other competent organs, an election court has jurisdiction to hear and determine pre-election nomination disputes if such dispute goes to eligibility and qualification to vie and contest in an election. If a nomination certificate is issued to a person who is neither qualified nor eligible to vie in an election, the certificate is not conclusive proof of eligibility and qualification to vie. If a dispute arises as to the validity of such a certificate and eligibility to vie, an election court has jurisdiction to determine the validity of the nomination certificate and the eligibility to vie of the person bearing the certificate.58.In our view, the provisions of article 88(4)(e) of the Constitution and section 74(1) of the Constitution are not clauses that oust the jurisdiction of an election court. Article 88(4)(e) confers jurisdiction of the Electoral Commission in settling of nomination disputes. The said article does not confer jurisdiction on the commission to hear election petitions. The article reserves the jurisdiction of an election court to determine election petitions. A nomination dispute that goes to the root of the electoral process, or one that determines qualification and eligibility of a candidate to vie, is an issue of substance that goes to the root of the election, and an election court has jurisdiction to hear and determine the dispute.” (Emphasis added)
19.Just one week before the decision in Mohamed Abdi’s case (supra) and in yet another dissent Maraga CJ, SCJ, (as he then was) in Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 others [2019] eKLR, defined matters that go into the root of an election as: -“(94)… pre-requisites spelt out in the Constitution including a degree from a University recognized in Kenya as the minimum academic qualification for election as a County Governor as prescribed by articles 180(2) and 193(1)(b) read together with section 22(2) of the Elections Act; and being a registered voter, nominated by a political party or as an independent candidate, is of sound mind and is not an un-discharged bankrupt as required by article 99 of the Constitution.”
20.Even though dissents, I find it the two opinions logically and jurisprudentially compelling as espousing the constitutional ethos that the rule of law must be obeyed as a pillar of values and principles of governance. The consequence of an election not conducted in accordance with the Constitution are dire such as the conduct of fresh elections at the very least but the ignominy is the overthrow of the rule of law as the ultimate price. I shudder to ask what would be the outcome of a clear case of an illegible candidate who get his way into victory and into the office of a governor then it merges that he had no qualifications at all! Would an election court turn its eyes and face the other way and acquiesce to the obvious violation of the law? Wouldn’t the court ask itself whether it can acquiesce to an illegality or improper conduct?
21.I pose all the questions to underscore the court’s finding that the law must be obeyed and that before it locks a party from being heard by resorting to the very draconian remedy of striking out a matter, it ought to conduct a full inquiry into the legitimacy of the academic certificates presented by the 1st respondent so as to ensure that elections are carried out in accordance with the Constitution. On that basis alone, I would dismiss the objection.
22.Additionally, while this matter was pending this determination, the forum the respondents are asking the court to direct the petitioners to, the IEBC Dispute Resolution Committee, in Complaint No 230 of 2022, Denis Gakuo Wahome vs Sakaja Koskei Nelson and another, (unreported) delivered on June 19, 2022, has delivered itself and determined that it lacks the mandate and thus jurisdiction to investigate or otherwise ascertain the authenticity of academic certificates presented to it by a political aspirant beyond the provisions of regulation 47, Election (General) Regulations, 2012. In coming to that conclusion, the committee reasoned and said: -“52.Regulations 30, 33, 46 and 47 Elections (General) Regulations, 2012 provide a list of what is required for a successful nomination of county governor candidates sponsored by political parties. The requirements are as follows:-a)An application for nomination feesb)Prescribed nomination feesc)Self-declaration form as prescribed under the Leadership and Integrity Act, 2012d)Certified copies of certificates of the educational qualification. For foreign degrees, one has to seek authentication of that body with the commission for University Education.53.The Returning Officer is restricted to this list and any other requirement that the law may demand. We agree with Mr Kipkogei’s assertions that the Returning Officer is not obligated to conduct investigation to ascertain the authenticity of a degree. Indeed, the RO’s main obligation, in ascertaining of educational qualifications is to ensure that the provisions of regulation 47 Elections (General) Regulations, 2012 are met. The said regulation provides as follows:-(1)For purposes of ascertaining the educational qualification of persons for an elective post, a person seeking nomination shall submit to the commission certified copies of certificates of the educational qualification.(2)Where the body that issued the certificate is not based in Kenya, a candidate shall be required to seek authentication of that body with the Kenya National Examinations Council, in the case of form four certificates, or the commission for University Education, in the case of university degrees.54.We further agree with Mr Okatch’s submissions that the commission, and by extension, the committee lacks the necessary tools with which to verify the validity of degrees presented by political aspirants.” (Emphasis added)
23.With that development, and before it is challenged and reversed by the court, and noting that the complaint here is on the same allegations as in the matter before the committee, it would be an injustice by way of denial of a right to access justice to accede to the preliminary objection and render the petitioners without a forum. A court of law cannot deny a litigant audience and leave such litigant without a recourse. I see this as an apt case for application of the exceptions to the doctrine of exhaustion in that a value of the Constitution regarding the rule of law would not be served if the court declines jurisdiction. The court is guided by the binding decision in Geoffrey Muthig Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal held: -“… the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.
24.Accordingly, for the reasons set out above, this court finds that the preliminary objection was improperly taken and that it lacks merit and the same is thus dismissed with costs being in the cause.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 23RD DAY OF JUNE 2022.PATRICK J O OTIENOJUDGEIn the presence of:Ms. Olucheli for the PetitionersMr. Malalah for the 1st RespondentMs. Odek for the 3rd and 4th RespondentsNo appearance for the other RespondentsCourt Assistant: Kulubi
▲ To the top

Cited documents 13

Judgment 9
1. Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] KECA 304 (KLR) Explained 233 citations
2. Francis Gitau Parsimei & 2 others v National Alliance Party & 4 others [2012] KEHC 2603 (KLR) Mentioned 14 citations
3. Eliud Wafula Maelo v Ministry of Agriculture & 3 others [2016] KECA 750 (KLR) Mentioned 13 citations
4. Samson Chembe Vuko v Nelson Kilumo & 2 others [2016] KECA 541 (KLR) Mentioned 12 citations
5. Kennedy Moki v Rachel Kaki Nyamai & 2 others [2018] KECA 553 (KLR) Explained 6 citations
6. REPUBLIC v INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION EX-PARTE CHARLES OLARI CHEBET [2013] KEHC 5175 (KLR) Mentioned 4 citations
7. Ethics and Anti-Corruption Commission v Granton Graham Samboja & another; Kenyatta University & another (Interested Parties) [2021] KEHC 8610 (KLR) Mentioned 3 citations
8. Sammy Ndung’u Waity v Independent Electoral and Boundaries Commission, Nderitu Muriithi, John Mwaniki & County Returning Officer,Laikipia County (Election Appeal 2 of 2018) [2018] KECA 420 (KLR) (31 July 2018) (Judgment) Mentioned 3 citations
9. Karanja Kabage v Joseph Kiuna Kariambegu Nganga,Fidelis Kitili Kivaya, Returning Officer Njoro Constituency & Independent Electoral and Boundaries Commission (Election Petition 12 of 2013) [2013] KEHC 1050 (KLR) (16 July 2013) (Ruling) Mentioned 2 citations
Act 4
1. Constitution of Kenya Interpreted 30404 citations
2. Elections Act Interpreted 987 citations
3. Political Parties Act Interpreted 613 citations
4. Leadership and Integrity Act Cited 325 citations

Documents citing this one 1

Judgment 1
1. Mbumbui & another v Giaka & 5 others (Constitutional Petition E004 of 2022) [2024] KEELC 1455 (KLR) (28 February 2024) (Ruling) Mentioned